Graham v Police - [2016] NZHC 1696

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2016-441-000023 [2016] NZHC 1696

BETWEEN
ARTHUR TOKA-PAUL GRAHAM

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 25 July 2016

Appearances:

W Hawkins for Appellant
F E Cleary for Respondent

Judgment:

25 July 2016

JUDGMENT OF VENNING J

Solicitors: Crown Solicitor, Napier
Public Defence Service, (Hawke’s Bay)

GRAHAM v NEW ZEALAND POLICE [2016] NZHC 1696 [25 July 2016]

[1] Arthur Graham pleaded guilty to burglary of a dwellinghouse, three charges of document fraud by using a stolen credit card and three charges of breach of bail. Sitting in the District Court at Hastings Judge Adeane sentenced him to an effective sentence of two years, three months imprisonment.1 Mr Graham appeals against sentence.

[2] In support of the appeal Mr Hawkins submitted the Judge had erred by: (a) adopting an excessive starting point;
(b)adopting an excessive uplift from the starting point for the further offending;

(c) failing to give a full discount for the guilty plea;

(d) failing to give any discrete credit for youth or remorse.

[3] Mr Hawkins submitted that when the above factors were taken into account the appropriate end sentence was in the range of two years or less which would lead to consideration of home detention.

[4] The lead offending was the burglary. It was a dwellinghouse burglary committed by more than one burglar. Both had consumed alcohol and methamphetamine prior to the offending. The burglary was carried out at night. A significant number of items were stolen, including two television sets, a playstation, jewellery, and children’s Christmas presents. In addition the victim impact statement records the interior of the property had been vandalised. It was apparent the offending had a significant impact on the victims.

[5] The credit card fraud involved the appellant’s use of a stolen credit card on
three occasions. The amounts involved were relatively minor at $102.46 in total. That offending occurred almost a month after the burglary.

1 NZ Police v Graham [2016] NZDC 11695.

[6] The Judge took a starting point of two years for the burglary and uplifted it by six months for the dishonest use of the credit card. He allowed a 10 per cent discount for the guilty plea but gave no further allowance for remorse or youth. That led to the end sentence of two years, three months. Counsel for the police submits that while stern, the sentence was within the acceptable range given the totality of the offending, particularly bearing in mind that the Judge did not impose any effective additional uplift on the breach of bail charges, imposing concurrent three month sentences.

[7] The Court of Appeal in Tutakangahau v R have confirmed that s 250(2) of the Criminal Procedure Act 2011 was not intended to change the previous approach taken by the courts to appeals against sentence.2 The manifestly excessive test continues to apply:3

[33] Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Graham v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NZHC 1696
Decision Date: 25 July 2016

CaseChat Overview and Summary

Arthur Graham appealed against his sentence for burglary, document fraud, and breach of bail. The High Court at Napier heard the appeal on 25 July 2016. Graham was represented by Mr Hawkins and the police by Mr Cleary. The appeal was about the District Court’s sentence of two years, three months imprisonment, which Graham argued was excessive. The appeal raised several issues: whether the starting point of two years for the burglary was appropriate, if the six-month uplift for the credit card fraud was justified, if the 10% discount for the guilty plea was sufficient, and whether any credit should have been given for youth or remorse. The court reviewed the authorities and found that while the starting point for the burglary was appropriate, the uplift for the credit card fraud was excessive and should have been three months instead. The discount for the guilty plea was also insufficient and should have been closer to 15%. However, the court found no genuine remorse was shown and no credit for youth was appropriate given Graham's age and criminal history. The court concluded the original sentence was manifestly excessive and adjusted it to 23 months, which led to the consideration of home detention. However, given Graham's past history and recent failures to comply with bail and release conditions, the court found home detention was not a realistic option. The appeal was allowed, the original sentence was quashed, and a new sentence of 23 months imprisonment was imposed, with all sentences to run concurrently.

Orders